At a hastily arranged Rose Garden press conference on Monday, President Donald Trump announced his intention to invoke the Insurrection Act of 1807 to send federal troops into the states unless governors were able to "dominate" protesters using National Guard soldiers. Then, after the Secret Service fired tear gas and rubber bullets at what appeared to be peaceful protesters in Lafayette Park, Trump walked a few hundred feet across the park for a photo op in front of a boarded-up church opposite the White House.
Given Trump’s track record of announcing legally problematic measures and not implementing them, it could be that his plan to invoke the Insurrection Act is no more meaningful than was his walk in the park.
Nevertheless, it’s worth looking closely at the law in question. The Posse Comitatus Act of 1878 says the president can’t use the military to enforce the law without authorization from Congress. The Insurrection Act is more important right now because it is an act of Congress that authorizes use of the military to enforce the law in some circumstances. In other words, it functions as an exception to the Posse Comitatus Act.
The Insurrection Act has a few parts. The first says that when there is an insurrection against a state and the state legislature — or, if it’s unable to convene, the governor — asks the president for help, then the president may send federal troops. This provision is not relevant under present circumstances. As of Monday night, no state had asked for the president to send in the U.S. military. And even if they did, it’s doubtful that the protests count as "insurrection ... against" state governments. They are just protests, and the looting is just looting.
The second part of the Insurrection Act says that the president can call out federal troops to enforce federal law if the President "considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings."
This rather cumbersome language also does not seem to apply to the current circumstances. There is certainly no rebellion. The protesters might qualify as "assemblages." But they are not making it impractical to enforce federal law in ordinary "judicial proceedings." The courts are open, and both state and federal law are in force to punish lawbreakers. The fact that property crime is taking place can’t be a basis to invoke this law — otherwise the president could invoke it at any time anywhere in the country where crimes take place.
That brings us to the third part of the law, which is potentially the most relevant. This part says that the president can use the military to put down "insurrection, domestic violence, unlawful combination, or conspiracy" in the states when certain conditions apply.
The looting probably does count as domestic violence. And this part of the law can go into effect if that violence "hinders the execution" of state and/or federal law so that some people in the state are "deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law" while "the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection."
This also isn’t the case right now, because protests and looting aren’t taking away any constitutionally guaranteed rights. Some might say that looting violates the property rights of shop owners. But technically the Constitution doesn’t guarantee that other people won’t loot my shop and steal my property. Rather, it says that the government can’t take my property without due process of law.
This last part of the Insurrection Act also says that the law could go into effect if violence "opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws." Here’s where Trump might have a case. It’s not totally absurd to say that the looting is obstructing execution of federal law to the extent that local police and the National Guard can’t successfully stop violence on the streets.
The upshot is that this last bit of the Insurrection Act could potentially allow Trump to bring out federal troops even without the request or consent of state governments. If he does, and his action is challenged in court, a judge might be inclined to defer to the president’s judgment — since the act as written gives the president the authority to take "such measures as he considers necessary."
In my view, it would be a gross exaggeration for Trump to call out federal troops in the absence of any state requests for military help. But it’s not necessarily unlawful, if the Insurrection Act is read literally. As we’ve seen over the past 12 weeks, U.S. law grants the president a fair amount of power to respond to emergencies. This is yet another example of just how much depends on that person’s judgment.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast "Deep Background." He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.